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Yearbook of Cultural Property Law 2007 YEARBOOK of CULTURAL PROPERTY LAW

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Yearbook of Cultural Property Law 2007 YEARBOOK of CULTURAL PROPERTY LAW Yearbook of Cultural Property Law 2007 YEARBOOK OF CULTURAL PROPERTY LAW Series Editor: Sherry Hutt Sponsored by the Lawyers’ Committee for Cultural Heritage Preservation The Yearbook provides those in the heritage-management world with sum- maries of notable court cases, settlements and other dispositions, legislation, government regulations, policies, and agency decisions that affect their work. Interviews with key figures, refereed research articles, think pieces, and a substantial resources section round out each volume. Thoughtful analyses and useful information from leading practitioners in the diverse field of cultural property law will assist government land managers; state, tribal, and museum officials; attorneys; anthropologists; archaeologists; public historians; and oth- ers to better preserve, protect, and manage cultural property in domestic and international venues. All royalties go directly to the Lawyers’ Committee for Cultural Heritage Preservation. Editor, 2007 Sherry Hutt Assistant Editor David Tarler Section Editors James Van Ness Kelly Yasaitis Fanizzo Rob Roy Smith Caroline Blanco Lucille Roussin Thomas Kline Patty Gerstenblith David Tarler Ryan Rowberry Contributing Editors L. Eden Burgess Anita Canovas Marion P. Forsyth Michael Scherzer Lawyers’ Committee for Cultural Heritage Preservation President Patty Gerstenblith Vice President Marion P. Forsyth Secretary/Treasurer Anita Canovas . Yearbook of Cultural Property Law 2007 Sherry Hutt Editor David Tarler Assistant Editor Walnut Creek, CA Left Coast Press, Inc. 1630 North Main Street, #400 Walnut Creek, California 94596 http://www.lcoastpress.com Copyright © 2007 by Left Coast Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. ISSN 1931-5627 ISBN 978-1-59874-078-3 Hardback LCCN 2006213755 07 08 5 4 3 2 1 Printed in the United States of America The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48—1992. Contents Preface / 7 Introduction The Year 2006: Fugue—The Interrelationship of Cultural Property Laws / 11 Interviews John Henry Merryman and Joseph L. Sax: Two Ways of Thinking about Cultural Property / 25 Practice Area Sections 1. Federal Land Management by James Van Ness / 33 2. State and Local by Kelly Yasaitis Fanizzo / 47 3. Tribes, Tribal Lands, and Indian Arts by Rob Roy Smith / 65 4. Marine Environment by Caroline Blanco / 83 5. Museum by Lucille Roussin / 87 6. Art Market by Thomas Kline / 99 7. International Cultural Property by Patty Gerstenblith / 109 8. Enforcement Actions by David Tarler / 119 Articles • Collecting Antiquities in the International Market: Philosophy, Law, and Heritage by Patty Gerstenblith / 139 • Museum Governance Developments: Trustees Taking Greater Responsibility by Thomas R. Kline and L. Eden Burgess / 167 • Rediscovery of the Tse-whit-zen Village and Native Burial Grounds: Misplaced Reliance on Section 106? by Douglas P. Wheeler and Jeffrey C. Nelson / 183 • Cultural Resource Damage on the Public Lands: What the Statistics Show by Todd Swain / 201 • Federal Prosecutions under the Archaeological Resources Protection Act of 1979: A Ten-Year Review (1996–2005) by Robert Palmer / 221 • Judicial Conversion of Culture: Attaching Embodiments of Ancient Culture to Judgments in Civil Proceedings by Travis Sills (Winner of the 2006 LCCHP Law School Writing Competition) / 237 Resources Law School Update: LCCHP Law School Survey Report. Compiled by Ryan Rowberry / 257 Review of Books, Articles, and other Resources / 267 Tribute Recognizing Career Achievements in Cultural Resource Protection / 275 In Memoriam Peter G. Powers (1930–2006): General Counsel of the Smithsonian Institution (1964–1995) by Ildikó DeAngelis / 285 Table of Cases / 199 About the Contributors and Editorial Board / 293 Index / 299 a rt i c l e Rediscovery of the Tse-whit-zen Village and Native Burial Grounds Misplaced Reliance. on. Section 106? 1 2 Douglas P. Wheeler and Jeffrey C. Nelson Introduction At the wrenching conclusion of a three-year struggle to protect the centuries old Tse-whit-zen Village and ancestral burial ground in Port Angeles, Washington, none of the parties could be completely satisfied with the outcome. The Wash- ington State Department of Transportation (WSDOT) had inadvertently begun to build an immense dry dock—known technically and ironically as a “graving” dock—on the site of an ancient Klallam Indian village and burial ground. When it stopped construction, WSDOT had spent $60 million with little to show for it, and was months behind on the repair of the critical Hood Canal Bridge.3 The Lower Elwha Klallam Tribe, whose ancestors lived at Tse-whit-zen for 2,700 years, view the results of this struggle as only a partial win for the tribe. The tribe had spent nine painful months helping project proponents remove 337 intact tribal burials and thousands of fragmentary human remains so that the graving dock project could proceed. Eventually, the tribe’s sense of loss and knowledge that an unknown number of burials would be left behind beneath the construction site became too much to bear, and the tribe made the difficult decision to withdraw its support of the project. Although the tribe was grateful that WSDOT honored the tribe’s request and abandoned the project, many tribal concerns over the disposition of the human remains— both those removed and those left at the site—went unresolved for nearly two more years. 183 184 ­­• • • yearbook of cultural property law 2007 From the perspective of a practitioner in historic preservation and Indian law matters, the events surrounding Tse-whit-zen demonstrate several signifi- cant faults in the current legal system. But the outcome speaks for itself—even though it was a painful and protracted process, the body of preservation law did create a framework within which an Indian tribe could rally public and official support for the protection of cultural, historical, and spiritual values. This article reflects the perspective of the historic preservation and Indian law practitioners who were privileged to assist the Lower Elwha Klallam Tribe in its navigation of the legal and public policy landscape created by the National Historic Preservation Act (NHPA),4 the National Environmental Policy Act (NEPA),5 and to a limited extent, the Native American Graves Protection and Repatriation Act (NAGPRA).6 Through these efforts, the Lower Elwha Klallam Tribe was able to protect a site that is being described as the largest ancient Indian village ever unearthed in the State of Washington, and one of the entire Pacific Northwest’s most significant archaeological discoveries. The­­Beginning­­and­­the­­End­­of­­the­­Port­­Angeles­­Graving­­Dock Everyone agrees that the Hood Canal Bridge, originally built between 1958 and 1961, is badly in need of rehabilitation. The floating bridge spans 1.5 miles over the northern end of Hood Canal, a 50-mile-long natural fjord extending off Puget Sound. The most unusual feature of the Hood Canal Bridge is that it floats—the bridge is supported by 35 hollow concrete pontoons, each up to 360 feet long and weighing up to 8,500 tons. The pontoons are each attached by cables running to large concrete anchors sitting on the bottom of Hood Canal. The inherent vulnerability of this type of construction became all too evident in 1979, when a severe storm caused structural damage and sank the west half of the bridge. Transportation planners considered replacing the entire bridge at that time, but decided instead to replace only the missing west half. In 1997, a WSDOT evaluation determined that the original east half of the bridge suffered from widespread corrosion-related deterioration and no longer met structural design standards. Therefore, WSDOT developed plans to rehabilitate the east half of the bridge, including replacement of 14 pontoons, refurbish- ment of three west-half pontoons, and replacement of 20 anchors. The Federal Highway Administration (FHWA) agreed to provide the majority of funds for this project. Although the FHWA would not manage operations, the grant of federal funds triggered federal NEPA, NHPA, and Rediscovery of the Tse-whit-zen Village and Native Burial Grounds • • • 185 Endangered Species Act (ESA) obligations. The U.S. Army Corps of Engi- neers (ACOE) also would be involved as a federal permitting agency, both at the Hood Canal Bridge site and at the site eventually selected for the graving dock. Earlier, in May 2001, the Washington State Legislature had created the Trans- portation Permit Efficiency and Accountability Committee (TPEAC) in order to streamline the permitting and approval process for transportation projects in the state.7 In November 2001, the TPEAC designated the Hood Canal Bridge project as one of three permit reform pilot programs. Originally, WSDOT planned to lessen its own burden by putting its construction contractor in charge of deter- mining where and how to fabricate the necessary concrete pontoons and anchors for the bridge rehabilitation. Therefore, WSDOT—as project proponent—began to assist the federal agencies in undertaking NHPA and NEPA reviews for this project, but initially limited the scope of review to the bridge work itself. Specifi- cally, a NHPA Section 106 consultation
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